James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Hansard source

PATERSON () (): I rise to make a contribution on behalf of the coalition in relation to the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023. This is an important bill. This is a necessary bill. It is a bill which, in principle, the coalition of course supports because it seeks to maintain a power that the coalition first introduced in office which enables the citizenship of a convicted terrorist to be removed.

However, we want to make sure we get this bill right and we want to make sure this bill achieves its objectives. We are willing to work with the government in a cooperative way to ensure that's the case, and to ensure the timely passage of this bill.

To that end, after being briefed on this bill earlier this week by the government, the opposition leader, Mr Dutton, has written to the Prime Minister, Mr Albanese, setting out what we see as a series of necessary amendments to improve and strengthen this bill. If the government is able to agree to these amendments, which we have also circulated in the chamber and which should now be available to senators, that would make it very easy for us to support the swift passage of the bill. If necessary—if the government is not able to move them—Senator Cash will move those amendments for the opposition later when we get to the committee stage of this debate. She will set out in more detail the purpose of those amendments and will speak to those.

In brief there are two main concerns that we have. One of them we do not seek to deal with by means of amendments today because it is not straightforward and needs to be considered. Without delaying passage of this bill, we are asking the government, after the bill is agreed to by the parliament, nonetheless to send it to the Parliamentary Joint Committee on Intelligence and Security so it can review this particular issue. The issue is that the bill as drafted and as proposed by the government does not adequately deal with the historical terrorism caseload that we have in this country, including our most notorious ever convicted terrorist, Abdul Benbrika. As drafted and if passed in this form, this bill would not allow the citizenship of a previously convicted terrorist offender who is in jail—and, in Benbrika's case, due to be released shortly—to have citizenship stripped from him, and that is because the bill has no retrospective elements. So someone like Benbrika—who was, rightly, convicted of, and jailed for, his crime and had his citizenship withdrawn but who was successful in the High Court in repudiating that withdrawal on the basis that it was done by a minister and not by a court—will be allowed, after his release from prison, to continue to be an Australian citizen unless he commits a fresh and new terrorism offence.

We want to make sure that all legal options have been exhausted to test whether or not, in fact, those who have been convicted of historical terrorism offences can have their citizenship withdrawn in a proper, lawful and constitutional manner. We think an inquiry by the Parliamentary Joint Committee on Intelligence and Security is the appropriate and necessary way to investigate the issue. Of course, when these bills were first introduced in 2015 and amended in 2018, they were subject to extensive consideration and inquiry by the PJCIS, and we think there is nothing to prevent the PJCIS from again doing so, particularly because we are only proposing that the PJCIS do so after the bill passes. We do not intend that an inquiry delay or impede the passage of the bill but only consider the bill after it has passed and whether any amendments could be secured to the bill after it's legislated to make sure these historical terrorist offenders like Benbrika are captured.

I will give a little bit of the history of this bill and explain why we are dealing it with today. On 8 June 2022, a majority of the High Court of Australia invalidated the ability of the Minister for Home Affairs under the Australian Citizenship Act 2007 to determine that a dual national who is engaged in terrorism related conduct is no longer an Australian citizen. As soon as that decision was handed down almost 18 months ago, it was clear that legislative reform was necessary. In fact, the government, through the Minister for Home Affairs, Ms O'Neil, in response to the decision in what is known as the Alexander case, initially promised to first legislate to fix this issue more than 12 months ago. On 24 October, Paul Karp in the Guardian reported the government's intention to introduce new legislation to restore these powers before Christmas last year. We are now dealing with this following a second case in the case of Mr Benbrika, who has also been successful, as Mr Alexander was, in having an element of this bill declared unconstitutional and therefore having his citizenship restored.

So, while it has taken the government 18 months since the first High Court decision to bring on this bill, apparently it is now an urgent priority that the parliament must consider this week. As I've said, we don't intend to stand in the way of the passage of this bill. It's an important principle which we support. But we do not understand why this week it has become urgent and why it couldn't have been dealt with a year ago, as the minister first said it would be, or why it couldn't have been dealt with a month ago when the Benbrika decision was handed down by the High Court. As I said, we are concerned that it only deals with future terrorism cases and does not deal with historical cases like that of Benbrika. This is a man who plotted devastating attacks on Australians, including one targeting the AFL Grand Final at the MCG, and we do not think it is appropriate to fail to address that very serious case.

The other thing our amendments seek to do is broaden the range of offences that could be an appropriate trigger for someone's citizenship to be cancelled. Senator Cash will move those amendments—and I see that they have now been circulated in the chamber. They expand the list of serious offences to include a range of other offences to be captured by this bill, including, for example: advocating terrorism and genocide; advocating violence against Australia's national interest; child sex offences; and other serious crimes. In the same way in which the government recognised that committing an act of terrorism, or planning to do so, violates the principle of citizenship, and in the same way that the government has, rightly, recognised—and, proposes to add to this bill—espionage and foreign interference as a betrayal of Australian citizenship, we think that these other serious crimes constitute that as well.

We are concerned that it doesn't capture slavery; torture; use of a carriage service for child abuse material; use of a carriage service involving sexual activity or causing harm to a person under 16; urging violence; advocating terrorism; threats to security, including training with a foreign military; offences related to monitoring devices in the Criminal Code; harming Australians, including the murder of Australians overseas; and many other matters. We think the bill should be amended to capture those so that the government has the widest possible opportunity to cancel the citizenship of one of these people. For example: if, upon being released into the community, Mr Benbrika commits new offences that are not of a terrorist nature, then under the bill, as currently drafted, there would be no opportunity for the government to apply to the court to have his citizenship removed. We want to give the government the maximum opportunity to take away the citizenship of a person like that.

Currently, as drafted, the bill says that if you're an Australian citizen but also hold another citizenship, and you go overseas and murder another Australian citizen, that is not sufficient ground to cancel your citizenship. If you're a person who engages in torture or who goes overseas to rape children, that is not enough to allow the minister to apply to a court and say, 'We don't think this person should be an Australian citizen; their citizenship should be cancelled, where they have another citizenship available to them.' Under this bill, if you're a person who goes to train with a foreign military, or who engages in arms-trafficking across borders or who urges violence against Australians—some of the clearest possible repudiations of your allegiance to Australia—you will be able to keep your Australian citizenship. This could be remedied by the amendments that we will move today. It need not be remedied by our amendments if the government agrees to our amendments, and I understand that the Leader of the Opposition and the Prime Minister are in discussions today about whether that can be facilitated.

We're keen to make sure that we can leave the parliament this week with the strongest possible citizenship-stripping bill passed and with no gaps in the bill. Unfortunately, we have learned in the last couple of weeks that when it comes to urgent national security bills introduced by this government some gaps have arisen. Gaps arose in the original migration amendment bill to impose binding conditions on those people released by the High Court into the community on bridging visas. We learned that, initially, the visa conditions were not binding at all; the only punishment for violating those visa conditions was to be detained pending deportation, and it wasn't lawful to do that in the view of the High Court. Then we learned that the government was introducing some conditions, but many omissions and weaknesses were identified in that bill, including no restrictions on whether someone should go near a school or a childcare centre if they were a convicted child sex offender, and no restrictions on contacting the family of a victim if they were a murderer. We proposed six amendments to that bill and the government subsequently agreed to them, even after they told the media and the parliament that their original bill was as strong as possible.

Again, this week the parliament is considering an urgent patch-up job to that legislation, because even that legislation had omissions and flaws in it. That includes the fact that the government forgot, while including these as breaches of visa condition, to also make it a criminal offence to engage in these behaviours, therefore tying the hands of the Australian Federal Police in enforcing these and making sure that people who breach their visa conditions can actually be locked away. Our experience with this government, when it comes to urgent national security legislation, is that if they're not scrutinised and amendments aren't proposed then the best possible bill cannot pass this place. It falls to the opposition to help them to do that.

As I said in my opening remarks, we intend to facilitate the passage of this bill this week—but only if the government agrees to strengthen the bill. We do not want to see a weak or inadequate bill pass the parliament. We want to see these issues which we have identified and written to the Prime Minister about addressed by way of amendments. We're hopeful that Prime Minister can be sensible and pragmatic, and recognise that this bill could be improved. We would welcome his support to do that.

As I've also said, we must carefully examine the question of whether the historical terrorism caseload in this country, including that of Abdul Benbrika, can be captured by this law. We appreciate that there are some complexities involved in doing that, and that's why we are not proposing that amendments seek to deal with that issue today. What we are proposing is that after the bill is passed it then be sent to the Parliamentary Joint Committee on Intelligence and Security for review to examine that question. We do not think it is acceptable that somebody like Benbrika, who plotted to blow up the MCG on Grand Final Day, should be allowed to be freed in the community with his Australian citizenship restored and no restrictions placed upon him. We must have the opportunity to apply to a court to grant the government's request for his citizenship to be removed. I don't think any Australian would think that Mr Benbrika, who is a dual citizen of Algeria and Australia, has upheld the obligations he entered into, when he obtained his Australian citizenship, to abide by our laws and support our values. He has very clearly defied those, and if no legal sanction can be applied to him by way of removing his citizenship then this is a deficient law and it must be fixed.

We are proposing to work in a constructive and bipartisan way with the government to achieve that. We are not willing to allow a rushed bill to be passed that doesn't deal with these very serious inadequacies that we have identified. My colleague Senator Cash will outline in more detail the amendments that she is prepared to move if the government is not prepared to agree to them.